Rule 12-5(22) of the British Columbia Supreme Court Civil Rules permits the Plaintiff to call the Defendant as a witness without notice, should the Defendant be in attendance at the trial.
In Rintoul v. Gabriele, the Plaintiff was injured as a pedestrian when she was struck in a marked crosswalk. She then brought an ICBC claim for non-pecuniary damages, as well as several other types of damages. Liability was in dispute. Although the Defendant acknowledged some fault for the accident, she argued there should be a finding of contributory negligence against the Plaintiff. The main issue was the Plaintiff‘s head injury, and whether or not she suffered from ongoing cognitive impairment which affected her employability.
The Defendant was in attendance at the trial. Counsel for the Plaintiff, under Rule 12-5(22) called the Defendant as the first witness in the Plaintiff‘s case. The Defendant made some damaging admissions during her testimony, which greatly assisted the Plaintiff in recovering close to one million dollars in total damages.
[16] Ms. Gabriele was asked why she did not, after looking to the right, look to the left again before making her turn, to see if any of the pedestrians she had previously seen on the southeast corner were walking in the crosswalk. She replied, “I made a mistake”.
[24] There was a break in the trial of just over two months. During that time period, Ms. Gabriele walked through the accident scene with her counsel. After the trial resumed, Ms. Gabriele was called to give evidence as part of the defence case. Testifying in chief, she gave a slightly different version of events. She said in her evidence in chief that after looking at the southwest corner, she looked back in front of her, did not see anything, and then proceeded to make her turn.
[25] I do not accept this second version of events. But even if I did, and I were to conclude that Ms. Gabriele did look forward at all before starting her turn, she could not have done so carefully; otherwise she would have seen the plaintiff, who would have been there to be seen, just slightly to her left. I find that the defendant commenced her turn and proceeded into the crosswalk without making any adequate check to see if there were pedestrians whom she was at risk of hitting.
